Edyta Ewelina Mordel v Royal Berkshire NHS Foundation Trust
| Jurisdiction | England & Wales |
| Judge | Mr Justice Jay |
| Judgment Date | 08 October 2019 |
| Neutral Citation | [2019] EWHC 2591 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ17C01861 |
| Date | 08 October 2019 |
[2019] EWHC 2591 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Jay
Case No: HQ17C01861
Clodagh Bradley QC (instructed by Boyes Turner LLP) for the Claimant
Michael de Navarro QC (instructed by Hempsons Solicitors) for the Defendant
Hearing dates: 2 nd – 5 th and 8 th – 9 th July 2019
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
Aleksander Mordel was born to the claimant on 25 th January 2015 with Trisomy 21 or Down's syndrome. He had been her first pregnancy. It is her claim in these proceedings for damages for clinical negligence that, in essence, the defendant missed two opportunities to carry out screening for Down's syndrome which, if taken, would have led to a termination of the pregnancy. Damages are claimed on the basis of the principles explained in Parkinson v St James and Seacroft University Hospital NHS Trust [2002] QB 266. This trial is confined to the issue of liability.
As is well known, Down's syndrome is one of the commonest genetic disorders and is caused by the presence of all or part of an additional copy of chromosome 21. It does not run in families. For some time now pregnant mothers have been offered in the NHS routine screening for Down's syndrome in the first trimester, usually at around 11–13 weeks. This screening has two elements: first, an ultrasound scan of the foetal neck area — this is what is known as the nuchal translucency test or “NT”; and, secondly, a blood serum test of the mother (a double test, i.e. of Beta hCG and PAPP-P) is carried out — in this particular trust on the same day. The result from this combined test yields a statistical risk factor which serves to inform subsequent decision-making. Any result higher than 1:150 is regarded as “high risk” and the mother should then be offered diagnostic testing.
Second trimester screening can also be offered to the mother but only if the first trimester screening has not taken place. The precise circumstances which might trigger the offer are not agreed by the parties, but the test in question is not performed by ultrasound and is limited to blood serum. On this occasion four blood components are examined, and the procedure is known as the “quadruple test”. As with the combined test, this is no more and no less than a screening procedure and cannot yield any certainty. The latter is attained only if the mother proceeds to diagnostic testing of DNA following the taking of foetal or placental blood and/or tissue via a needle placed through the abdominal wall, a procedure which entails a risk of miscarriage of up to 2%.
It is immediately apparent that screening and diagnostic testing of this sort generates differences of opinion amongst reasonable people, and for that reason in no sense is it regarded as obligatory. The NHS must offer screening for Down's syndrome but maternal informed choices must be respected. The majority of expectant mothers do accept first trimester screening although rates vary quite significantly throughout the country dependent no doubt on the make up of the catchment area. However, and as one of the witnesses explained to me, there is no profile or stereotype for those who tend to decline.
In the present case, the facts in the broadest outline are that on 23 rd June 2014 the claimant attended the community midwife at her GP's surgery for her booking appointment and “accepted” all six of the standard screening tests, including combined screening. She was booked in for her NT scan on 22 nd July. On that date she attended the Royal Berkshire Hospital for the scan to be carried out. There is a dispute between her and the sonographer as to what happened, but it is clear that the latter completed the ultrasound report: “Down's screening declined”. No NT scan was carried out but the overall condition of the foetus was checked by ultrasound and the due date was ascertained more precisely and then corrected in the records. The second part of the combined test – the taking of blood – was not carried out either, consistent of course with the claimant having declined Down's screening. On 11 th August the claimant returned to see the same midwife and it is common ground that the quadruple test was not offered. The claimant did undergo a foetal abnormality scan at around 20 weeks' gestation but this was unremarkable. After a Caesarean section Aleksander was delivered safely.
In the light of the parties' submissions, the issues for my determination may be specified as follows:
(1) (a) Did the sonographer offer Down's Screening on 22 nd July 2014; and, if she did, what exactly did she say? (b) did the claimant appear to decline the offer; and, if she did, what exactly did she say?
(2) Did the sonographer discharge her duty to the claimant in terms of obtaining the latter's informed consent?
(3) If the answer to (1)(a) and (b) is “yes” and (2) is “no”, was it in fact the claimant's wish not to undergo Down's screening on this occasion?
(4) Did the midwife discharge her duty to the claimant on 11 th August 2014 in not exploring why the combined test had not been carried out?
(5) If the answer to (4) is “no”, would the claimant have informed the midwife pursuant to the exploration that ex hypothesi the latter should have conducted that she wanted Down's screening (i.e. the quadruple test)?
(6) In the event that the answer to (3) is “no” and/or to (5) is “yes” (on the assumption that either or both of these questions arise), would the claimant have consented to invasive testing and a termination of pregnancy?
Within these issues are embedded a number of sub-issues which I will address at the relevant time.
Key Contemporaneous Records
The booking appointment took place on 23 rd June 2014 under the auspices of Midwife Foley with a student midwife also in attendance. It was recorded that this was an unplanned pregnancy, that the claimant's mood was low, and that her first language was Polish. It is clear from the hand-held notes, and it is not in dispute, that a number of tests were discussed and “accepted” by the claimant, in particular “Dating scan 8 weeks onwards”, “Combined screening 11–13+6 weeks (NT and serum)”, “15–19 weeks serum testing after dating scan (if no combined screening)” and “foetal anomaly scan (18–21 weeks)”. Midwife Foley and her student have signed the records at this juncture with the addition, “NHS screening booklet given”. The word “unsure” has been written beside the invasive tests. Very little really turns on this particular uncertainty, because there is a broad measure of expert agreement that “unsure” would be commonplace: many mothers would wish to know the level of the risk before contemplating the next stage. Either Midwife Foley or her student wrote “Nuch 22/7” on the hand-held notes.
On 22 nd July 2014 a maternal ultrasound report was completed by Ms Lorraine Bracher, the reporting sonographer. This provided, insofar as is material:
“ Indication:
1 st Trimester screening
History
Maternal age: 28 years
…
EDD by ultrasound: 28.01.2015 (EDD by dates: 03.02.2015)
Gestational age: 12 weeks + 6 days …
First Trimester Ultrasound
…
CRL [crown rump length]: 67 mm
Downs Screening Declined
…
Diagnosis
No obvious abnormal ultrasound appearances, results communicated to patient.”
On 11 th August the claimant was seen again by Midwife Foley. She completed in the hand-held notes the results of blood tests taken on 23 rd June. The test for antibodies needed to be repeated and this was done on the same day. The following two boxes were left blank in the notes:
“Combined NT & Serum (11–13+6 weeks)
Serum only (if no combined test) (15–19 weeks)”
Foetal abnormality scans were carried out in September. It was recorded that all structures were normal.
Within ten hours of Aleksander's birth the claimant suspected Down's syndrome and her notes record her anger and disbelief once the diagnosis was confirmed:
“ Incident Reporting form DIF2, 27 th January 2015
Antenatal notes show antenatal screening accepted [a]nd screening booklet accepted. Documentation states pre-natal diagnosis/CVS/amnio as unsure. On scan report it states downs screening declined but pt disputes this as she was concerned about her baby's health. Bloods were taken but no letter with risk factor receive by pt and no result in hand-held notes/no reason documented for declining downs screening in USS. Baby was born with trisomy 21 and pt tells me she would not have continued with the pregnancy had she known.
Note of Midwife Vicky Antonowicz on 27 th January 2015
Edyta very upset + angry about baby having Down's syndrome as she had scans + bloods taken. Scan report state screening declined but Edyta denies she said this + she doesn't remember being asked about screening. She did not receive any letter stating blood results/risk factor and no documentation in notes re blood results. No documentation of any reason given for declining Down's screening at USS. Edyta tells me she would not have continued with pregnancy had she known baby had Down's syndrome. Apologies given ++.
Clinical Note, 28 th January 2015
Seen re missed [diagnosis ] Tr 21
Condolences
Explained what is written in the notes & US report.
Agreed handover between M/W's & failure to f/u absence of screening result an ‘issue’.
The couple are very upset to the point of irrationality re process & ability of screening to detect Tr 21.
Plan to ‘sue’ hospital. Advised against it.”
Relevant Policies
National guidance is provided in the NHS document, Antenatal Screening – Working
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